Emmons v. Newman. make him a partner; but if he agrees for a part of the profits, as such, giving him a right to an account, though having no property in the capital, he is, as to third persons, a partner.” Prof. Parsons, in his work on partnership, admits the existence of the distinction and rule above stated, but contends that the distinction is not very reasonable or useful, and presents the authorities maintaining the opposite doctrine; but he lays down the rule to be as stated by Lord ELDON, that where a person is to receive a sum of money in proportion to a given quantum of the profits, he is entitled to an account. We feel constrained, by the number and weight of the elementary writers and adjudged cases, to hold that the parties to this action were not partners; but this is, by no means, decisive of the case; for the appellee was entitled to an accounting; for it is alleged that all the sums of money received by him for work went into the firm, as well as the money and personal property put into the concern; and that the defendant had forcibly taken the possession of all the partnership property, including the books, notes, accounts, cash, clocks, watches, jewelry, notions, etc., and refused to allow the said plaintiff the possession or use of any part of the same. The plaintiff was entitled to whatever relief the facts justified. If he was a partner, and the defendant had taken possession of all the partnership property and assets, he had a right of action. If he was to receive for his work the amount charged and received therefor, and if this money had gone into the concern, then he was entitled to an accounting, for the purpose of ascertaining how much he had earned, and what was coming to him. If he put money, watches, tools, and a safe in the store, and the defendant had converted them to his own use, he was entitled to recover their value. We are of the opinion the court committed no error in overruling the demurrer to the complaint. Did the court err in overruling the motion for a new trial? Emmons v. Newman. It is insisted by the appellant that the court erred in refusing to give certain instructions. It is maintained by the appellee that the question is not presented by the record. There are two ways in which an instruction that has been asked and refused may be made a part of the record. The one is by writing at the close of each instruction the words, "refused and excepted to," and this should be signed by the party or his attorney. 2 G. & H. 201, sec. 325. This mode was not adopted in this case. The other mode is by embodying the instructions "refused and excepted to" in a bill of exceptions. Was this mode adopted in the case under consideration? The defendant embodied in his motion for a new trial certain instructions, which, he alleged, had been asked and refused; and the refusal to give which was assigned as reasons for a new trial. The motion was overruled, and the defendant excepted. The evidence was put in the record by a bill of exceptions. Near the close of the bill of exceptions, the following entry appears: "And be it further remembered that, on the same day, and at the proper time, the defendant moved the court for a new trial in this cause, which motion is in the words and figures following, to wit:" The clerk, in making out the transcript, has inserted in brackets, after the above entry, the following: "[See page 8, line 16, to line 13, page 10.]" Conceding that the above reference of the clerk incorporated into the bill of exceptions the instructions asked and refused, we do not see how the condition of the appellant would be improved. There must be an exception to the giving or refusal to give an instruction, and that exception must be noted at the end of the instruction, or in the bill of exceptions. The mere copying the instruction into the bill will avail nothing, unless it is stated in the bill that the party excepted, and this is not done in this case. But it may be maintained that, as a motion for a new trial becomes a part of the record without a bill of exceptions, Emmons v. Newman. and as the motion in this case embodied the instructions said to have been asked and refused, the instructions were thus made a part of the record. It was decided by this court, in McSheely v. Bentley, 31 Ind. 235, and in The Indianapolis Piano Manufacturing Company v. First National Bank of Indianapolis, 33 Ind. 302, that this court cannot accept, as true, the statements contained in a motion for a new trial. It is the well settled practice of this court that when a motion for a new trial is made for the reason that the finding of the court or the verdict of the jury was not sustained by, but was contrary to, the evidence, no question is presented for review here, unless the evidence is embodied in a bill of exceptions. The same rule must obtain in this case. How do we know that any such instructions were asked and refused? We do not know but that the court overruled the motion because no such instructions had been asked, or, if asked, had been given. Instructions given or refused must be made a part of the record by a bill of exceptions, or in the mode pointed out in sections 324 and 325, 2 G. &. H. 198. The Jeffer sonville, etc., R. R. Co. v. Cox, 37 Ind. 325. It remains to inquire and determine whether the verdict was sustained by sufficient evidence. We have read and considered the evidence, and find it to be very conflicting and contradictory. The evidence consisted mainly of the testimony of the parties. The testimony of the plaintiff was not consistent and harmonious. He contradicts himself. It was a question of credibility. It was the duty of the jury to reconcile and harmonize, if possible, all the evidence, so that it might all stand and be considered together; and if this could not be done, then they were required to determine which they would believe, and which they would disbelieve. The parties consented to a jury of six men. They seem to have been chosen and agreed upon on account of their deservedly high character for intelligence, fairness, and integrity. We are satisfied that the jury got nearer the justice of the case than we could do by reading Martin v. Cole. the evidence, as it appears on paper, without any of the opportunities possessed by the jury of seeing and observing the appearance, manner, and conduct of the witnesses, their intelligence, their means of information, and their willingness or unwillingness to testify fully and frankly to all matters within their knowledge. We cannot disturb the verdict. The judgment is affirmed, with costs. L. Wallace and F. M. Butler, for appellant. MARTIN V. COLE. JUDGMENT.-Assignment.—Summons.-A complaint alleged that the plaintiff had taken from the defendant, by assignment without recourse, a certificate of purchase of real estate sold under execution on a judgment in favor of the defendant; that said judgment was void, because the name of the plaintiff therein was not inserted in the summons; and he therefore demanded the return of the money paid by him for the assignment. Held, that the complaint did not show that the judgment was void, as the defendant therein might have appeared to the action, fraud was not alleged, the facts were equally open to both parties, it was not averred that the plaintiff was not in possession of the land under a deed, or had not received the excess paid by defendant on his bid, over the judgment. Held, also, that the summons was not void. APPEAL from the Harrison Circuit Court. PETTIT, J.-This suit was instituted by the appellant against the appellee and a number of other persons, to accomplish one or more of various objects prayed and asked for; but the suit was dismissed as to all the defendants, except the appellee, Cole, against whom a new complaint was filed, to which a demurrer, for want of sufficient facts, was sustained, and exception taken; and both parties, by their ab Martin v. Cole. stracts and briefs, admit that the correctness of this ruling is the only question in the case, this being the only error assigned. The complaint is as follows: "The plaintiff, Milton Martin, as and for an amendment to his original complaint herein filed, says that on or about the 19th day of August, 1867, the above named defendant, William E. Cole, instituted an action in this honorable court against John D. Austin and Elizabeth Austin, on a note executed by them to the said William E. Cole, in which action so instituted such other and further legal proceedings were attempted, and supposed to be had in pursuance of law, that at the September term of this court, in the year 1867, to wit, on the 24th day of September, 1867, said William E. Cole, by the consideration and judgment of this honorable court, recovered a judgment in said action against the said John D. Austin and Elizabeth Austin, for the sum of two hundred dollars and seventy cents and costs of suit. Afterward, to wit, on the 24th day of October, 1867, the said William E. Cole caused a writ of execution to be duly issued on said judgment, directed to the sheriff of Harrison county, commanding him, that of the goods and chattels, lands and tenements of the said John D. Austin and Elizabeth Austin, he should cause to be made the money aforesaid; and on the 2d day of November, 1867, said writ of execution came to the hands of Henry Ziner, then sheriff of Harrison county, to be by him executed according to its commands. Afterward, to wit, on the 25th day of January, 1868, said Henry Ziner, sheriff, levied said writ of execution on the north half of the south-east quarter of section thirty-three, township one, south in range three east, in Harrison county, as the property of said John D. Austin and Elizabeth Austin; and after advertising the same for sale, as required by law, said sheriff did, on the 22d day of February, 1868, between the hours prescribed by law, offer said land for sale at public auction, to pay and satisfy the debt, damages, and costs mentioned in said writ of execution; and the said William E. Cole then and there bid for said land the sum of seven hundred and fifty |